Om Prakash Gupta v. State of U. P. — 1991 DIGILAW 960 (ALL)

JUDGMENT S. Saghir Ahmad, J. - The petitioner, who held the office of the President of the Nagar Palika, Sitapur, has, by means of the present petition filed under Article 226 of the Constitution, challenged the order dated 11101990 (annexure 1) passed by the State Government under Section 48(2A) of the U.P. Municipalities Act (hereinafter referred to as, the Act) by which he has been removed from the office of the President. He has also challenged the order dated 1871991 (annexure 2) of the District Magistrate through which the earlier order dated 11101990 (annexure 1) is sought to be enforced by requiring the Executive Officer to deliver the charge of the office of the President to the Vice President. 2. It appears that a charge sheet (annexure 4) was issued to the petitioner but because the petitioner did not submit a reply, the impugned order dated 11101990 was passed by which he was removed from the office of the President. 3. The petitioner has stated that the charge sheet Was at no time served upon him. It was not sent to him either through post office of through the office of the Nagar Palika nor was it at any time pasted on the door of his residence. It is also stated that apart from holding the office of the President of the Nagar Palika, the petitioner was also elected as Member of the U.P. Legislative Assembly from Misrikh constituency of district Sitapur and that the petitioner was all along available either at hts residence or at his office in the Nagar Palika or in the Civil Secretariat, Lucknow but the charge sheet was never sought to be served upon him at any of these places and the recital in the impugned order (annexure 1) that the charge sheet was pasted at the door of his residence was wrong. 4. The charge sheet (annexure 4) contains four charges against thet petitioner, which are reproduced below: 5. The petitioner has tried to explain these charges by saying that allotment of all municipal land was done by the erstwhile Administrator of the Nagar Palika and no allotment was done by him. He only fixed the rent and took only consequential action, namely, that the rent was fixed and in one case registration was got done. The petitioner has tried to explain these charges by saying that allotment of all municipal land was done by the erstwhile Administrator of the Nagar Palika and no allotment was done by him. He only fixed the rent and took only consequential action, namely, that the rent was fixed and in one case registration was got done. The municipal administration of the city has improved inasmuch as the city has become neat & clean, streets are well lighted & their repairs have also been undertaken. It was also indicated that a number of tube wells were constructed and hand pumps were installed in the city. He also stated that salary was being regularly paid to all employees and civic amenities have vastly improved although the income from Octroi has ceased to be available to the Nagar Palika. 6. It is further stated that the S. D. M. (Sadar) as also District Magistrate, Sitapur were annoyed with him and it was on account of their annoyance that they held an enquiry la Which the petitioner was not associated attct made a false report to the State Government which was accented by the latter and the impugned order was passed. 7. The petitioned also alleged that the impugned order Was passed in the month of October, 1990 but Was sought to be enforced after a long time in the month of July, 1991 through the District Magistrate who required the Executive Officer to get the charge of the officer of the President delivered to the Vice President. 8. The petition was filed in this court on 2471991 when a Division Bench comprising of S. N. Sahay, J. and S.H.A. Raza, J. passed the following order : Learned Standing Counsel prays for time to seek instructions and to produce the relevant record pertaining to the removal of the petitioner from the office of the President, Nagar Palika, Sitapur. Put up on 2671991. Sd/S. N. Sahay Sd/S. H. A. Raza 2471991, 9. On 26 7l991 the case came up before a Division Bench comprising of B. Kumar and S. H. A. Raza, J. who passed the following order: Put up on 297199l to enable the learned Standing Counsel to produce the file of the State in connection with this matter, Today he has the file of Municipal Board, Sitapur. Sd/B. Kumar Sd/S. H. A. Raza 2671991, 10. Sd/B. Kumar Sd/S. H. A. Raza 2671991, 10. today when the case was taken up, the Standing Counsel stated that all relevant records including the record of the State Government Were available with him. 11. We have perused the record. We have also heard the counsel for the petitioner as also the Standing Counsel, Since it appears to us that the petition can be disposed of at the admission stage on a short question of law and since the learned counsel for the parties agree that the petition may be finally decided, we proceed with their consent to dispose of this petition finally. 12. It is contended by the learned counsel for the petitioner that the impugned order dated 11101990 contained in annexure 1 is liable to be set aside on the ground that it does not set out the reasons on the basis of which the petitioner is sought to be removed from the office. It is contended that the statutory provisions contained in Section 48 (2A) contain a mandate that the reasons shall be recorded in writing by the State Government for the removal of the President from his office. 13. The relevant portion of Section 48 is quoted below: 48. Removal of President (omitted by U.P. Act VII of 1942.) (2) Where the State Government has, at any time, reason to believe that (a) there has been a failure on the part of President in performing his duties, or (b) the President has (i).............................................. (ii)............................................. (iii)......................................... (iv).......................................... (v)............................................. (vi) been guilty of misconduct In the discharge of his duties; or (vii)........................................... (viii)......................................... it may call upon him to show cause within the time to be specified in the notice why he should not be removed from office. (2A). After considering the explanation that may be offered by the President and making such enquiry as it may consider necessary, the State Government may, for reasons to be recorded in writing, remove the President from his office: Provided that in a case where the State Government has issued notice in respect of any ground mentioned in Clause (a) or subclause (ii), (iii), (iv), (vi), (vii). or (viii) of Clause (b) of subsection (2), it may instead of removing him give him a warning. (2B). An order passed by the State Government under subsection (2A) shall be final and shall not be qeestioned in any court (3)..................................... (a)...................................... (b)..................................... (4)..................................... or (viii) of Clause (b) of subsection (2), it may instead of removing him give him a warning. (2B). An order passed by the State Government under subsection (2A) shall be final and shall not be qeestioned in any court (3)..................................... (a)...................................... (b)..................................... (4)..................................... 14. The statutory procedure & manner set out in Section 48 quoted above are that the State Government shall first have reasons to believe that there has been a failure on the part of the President in performing his duties or that he has acted in any of the manner set out in subclauses (i) to (viii) of clause (b) of subsection (2). 15. The Phrase reasons to believe does not mean rumour nor is the State Government expected to act on rumours. It means something substantial on the basis of which a bona fide opinion could be formed as to the possibility of the existence of the factors or circumstances requiring an action contemplated by the statute. Formation of opinion has to be bona fide i. e. it must be reasonably supported by the material containing the information. Since the law requires that there has to be reasons to believe, there cannot be an arbitrary opinion formed by the authority concerned, who, under law, is required to initiate action, 16. Once the material is available and an opinion is formed as to the existence of factors enumerated in Section 48(2), the State Government is then required to issue a notice to the President requiring him to show cause why he should not be removed from the office. The second step indirectly explains the first step, as it indicates that the State Government is to form a bonafide opinion that the President, on account of his having committed defaults, contemplated by Section 48(2), has to be removed from the office and it is against this tentative opinion of the State Government that the President is required to show cause. 17. The third step is that the President will show cause i. e. the President would submit his explanation and reply to the notice by which he was required to show cause why he should not be removed from office. Another part of this process is the consideration by the State Government of the explanation submitted by the President. 18. The fourth step is the holding of enquiry. Another part of this process is the consideration by the State Government of the explanation submitted by the President. 18. The fourth step is the holding of enquiry. The requirement is that the State Government would hold such enquiry as it considers necessary. This would indicate that holding of the enquiry is necessary. What would be the nature of the enquiry or in what manner would the enquiry be held and what would be the scope of the enquiry has been left in the discretion of the State Government. 19. Then comes the penultimate step, namely, recording of reasons and it is on this ground that we intend to interfere in the matter. 20. The Legislature while enacting Section 48(2A) was conscious of the importance of reasons on the basis of which action was to be taken. 21. Giving of reasons is an essential component, rather, one of the fundamentals of administrative law. The recording of reasons is a detersent against arbitrary action and prevents the infiltration of personal prejudices, bias or malice or, for that matter, unfairness, into the decisional process. 22. In M. P. Industries v. Union of India, AIR 1966 SC 671 , Subba Rao, J. (as he then was) observed that a reasoned order has the appearance of justice having been done in the matter. 23. Bhagwati, J. (as he then was) observed in Smt. Maneka Gandhi v. Union of India and others, AIR 1978 SC 597 that giving of reasons is a healthy check against bias or misuse of power. 24. This decision, namely, the decision in Smt. Maneka Gandhi's case (supra) represents judicial insistence on the adjudicatory authorities to give reasons for their decision. As a matter of fact, the courts in this country have consistently spelt out that there was an obligation on the part of the adjudicatory or quasi judicial authorities to give reasons for their decisions. In order that a quasi judicial authority may be said to have complied with the principles of natural justice, it is necessary for it to pass a speaking order i. e. an order which speaks for itself, or, to put it differently, gives and sets out reasons. 25. The duty or the obligation to give reasons is sometimes also contained in the statute. 25. The duty or the obligation to give reasons is sometimes also contained in the statute. Such a provision has always been treated as mandatory with the result that failure to give reasons would be fatal to the action taken. 26. It may also be stated that giving of reatons is also an essential ingredient of the whole process of the natural justice. But the court has hot always quashed a nonspeaking order if, in appropriate cases, reasons are found to be recorded on the file. 27. The Supreme Court has also indicated that though it is not necessary for the administrative authorities to write out a judgment as courts of law would do (See Bhagat Raja v. Union of India, AIR 1967 SC 1606 , State of Madras v. Srinivasan, AIR 1966 SC 1827 , Shriram Vilas Service v. Chandra Sekhran, AIR 1965 SC 107 ) but as observed in the last case, atleast the outline of the process of reasoning must be given. 28. It is in the light of the above principles that the present case is to be scrutinised to find out whether the State Government has complied with the provisions of Section 48(2A) which, as pointed out above, are mandatory and require the State Government to record its reasons in writing for the removal of the President of a Municipal Board. 29. Annexure 1, which is the impugned order dated 11101990, recites that the charge sheet was served upon the petitioner by affixation of a copy thereof on the main door of his residence. It further recites that the petitioner did not submit a reply and, therefore, he was found guilty. 30. This order containing the above recitals, does not, in our opinion, comply with the mandatory requirement of Section 48(2A) under which the State Government had to record its reasons before removing the petitioner from the office of the President. 31. It further recites that the petitioner did not submit a reply and, therefore, he was found guilty. 30. This order containing the above recitals, does not, in our opinion, comply with the mandatory requirement of Section 48(2A) under which the State Government had to record its reasons before removing the petitioner from the office of the President. 31. The mere recital in the order that the service of the charge sheet has effected on the petitioner by affixation or that he had not submitted his reply cannot be treated to be reasons within the meaning of Section 48(2A) on the basis of which he could be removed from the office It will be noticed that in the charge sheet issued to the petitioner, an explanation was called for but it was not indicated therein that he was proposed to be removed from the office and that he had to show cause against his removal. 32 The nature of charges indicated in the charge sheet (anneure 4) reflect serious lapses on the part of the petitioner. These charges could have been established by a reference to the evidence available on the record but the State Government while passing the impugned order has not referred to any evidence against the petitioner. It does not say how and in what manner were the charges held to be proved. Mere nonsubmission of an explanation by the petitioner cannot be treated to be a substitute for proof in support of the charges framed against him. The order, there fore, in out opinion, does not contain any reasons on the basis of which he could have been removed from the office of the President. 33. In order to find out whether the State Government has recorded any reasons on the file, we looked into the original records produced before us by the Standing Counsel. The record indicates that prior to the issuance of the charge sheet to the petitioner through annexure4, the District Magistrate, Sitapur had submitted a report dated 1611990 against the petitioner which was considered by Sri K. M. La!, Joint Secretary, Nagar Vikas Vibhag, Government of U.P., Lucknow, who, in his turn marked it to the Special Secretary on 821990, The Special Secretary, on noticing that the charges were serious, queried whether any action could be taken at the level of the State Government. The file ultimately came before the Secretary, Nagar Vikas, who, on 1621990, directed that action be initiated at the level of the State Government and that a charge sheet be prepared. The charge sheet was approved by the Secretary, Nagar Vikas Vibhag on 2331990 and it was this charge sheet which was issued to the petitioner through annexure4 which, as observed earlier, did not call upon the petitionor to show cause why he should not be removed from the office of the President, 34. The record further indicates that the charge sheet was taken to the petitioner at his residence, but he refused to acknowledge its receipt and returned it to the process server, who then affixed it on main door of his house. 35. It was in these circumstances that the State Government, treating the service of the charge sheet on the petitioner, as sufficient held the charges proved only on account of the fact that a reply of the charge sheet was not submitted, and passed the order of removal on 11101990. 36. From the original record it appears that the petitioner, in the meantime, had. made an application to the State Government on 11101990 addressed to the Chief Minister that any action initiated for his removal from the office of the President, Nagar Palika, Sitapur may be cancelled. Immediate action was Initiated on this application. There Is a remark of the Joint Secretary to the Chief Minister that if any action has been initiated for the removal of the petitioners the same may not be given effect to without prior approval of the Chief Minister. He also made a remark that if any proceeding for the removal of the petitioner have been taken, the same may be cancelled. It appears that it was for this reason that the removal order dated I1101990 contained in annexure 1 was not served on the petitioner, although the same had already been endorsed to the District Magistrate requiring him to serve it upon the petitioner. 37. The original record further indicates that the file thereafter started running from the one officer to another officer including the Law Department as it became the subject matter of polemics for cancellation or for maintaining the above order. 37. The original record further indicates that the file thereafter started running from the one officer to another officer including the Law Department as it became the subject matter of polemics for cancellation or for maintaining the above order. Ultimately there appears to be an endorsement of the Secretary, Nagar Vikas Vibhag made on 2261991 that the file may be placed before him after the new Ministry was sworn in. Thereafter a note was prepared on 2861991 by Special Secretary, Nagar Vikas Vibhag which was placed before the Secretary and then before the Minister, Nagar Vikas and thereafter before the Chief Minister on 671991, The note dated 2861991 of the Special Secretary reads as under: 38. This note only mentions that the charges against the petitioner were serious and since he had not submitted his reply to the charge sheet which he had refused to receive, it was apparent that he, namely, the petitioner had nothing to say in the matter and, therefore he was liable to be removed from the office of the President of the Negar Palika, Sitapur. The Special Secretary suggested that the District Magistrate may be directed to serve the order (already passed) on the petitioner. It was on this note that the Chief Minister placed his signatures on 6.7.91. The original records also, therefore, do not indicate the reasons why the charges were found proved against the petitioner. Whatever material was collected against the petitioner was not scrutinised and there is no reference to the evidence in support of the charges. 39. As pointed out earlier, an order which is a nonspeaking order cannot be sustained. 40. We may at this stage refer to a decision of this court m Ambika Prasad Chaturvedi v. State of Uttar Pradesh and another, 1968 ALJ 78 in which the order of removal of the President was set aside on the ground that it was not a speaking order. The petitioner of that case was the President of the Municipal Board Auraiya, district etawah. He was removed by an order which read as under: I am directed to say that your explanation dated June 21, 1966, to the charge sheet issued with G.O.N.O. 1770/XIA 828/1965 dated June 4, 1966 has been considered by Government and has been found unsatisfactory. The petitioner of that case was the President of the Municipal Board Auraiya, district etawah. He was removed by an order which read as under: I am directed to say that your explanation dated June 21, 1966, to the charge sheet issued with G.O.N.O. 1770/XIA 828/1965 dated June 4, 1966 has been considered by Government and has been found unsatisfactory. You have failed in the performance of your duties and have been guilty of misconduct in the discharge of your duties. The Governor has, therefore, been pleased to remove you from the President ship of the Municipal Board, Auraiya (District Etawah) with immediate effect under clause (a) and clause (b) of subsee. (2) of Sec, 8 of the U.P. Municipalities Act, 1916 (U.P. Act No. II of 1916). 41. The order was set aside on the ground that it did not record reasons. The mere recital that the explanation was considered and found unsatisfactory was not held to constitute reasons required by section 48 (2A) of the Act. We are in respectful agreement with this decision. 42. In the instant case, the recital in the impugned order contained in annexure1 is that the petitioner had failed to submit his reply which was treated to indicate that the charges were proved, This recital, in our opinion, cannot be treated to be 'reasons' within the meaning of section 48 (2A) of the Act. 43. In view of the above, the writ petition is allowed and the impugned order dated 111090 contained in annexure1 as also the order dated 18791 contained in annexure2 by which the District Magistrate has required the Executive Officer to get the charge of the office of the President delivered to the Vice President are hereby quashed leaving it open to the State Government to pass a fresh order after appropriate proceedings in accordance with law in the light of the observations made above. 44. After the judgment has been dictated, there is oral request by the learned Standing Counsel that leave may be granted to file an appeal in the Supreme Court. Since the question involved is not of general public importance and no Constitutional point to be decided by the Supreme Court is involved, the leave prayed for is refused. (Petition allowed)